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|143| THE SUPREME COURT OF THE UNITED STATES.
ITS JUDGES AND JURISDICTION.

The late renovation in the constitution of this august body, by the creation of seven of its nine members under the auspices of the present democratic ascendency, may be regarded as the closing of an old, and the opening of a new, era in its history. And certainly to those who have looked on, for so many a weary year, in sorrow and almost in despair, at the career of high-handed judicial legislation, which it was so proudly pursuing, this correction—salutary, however tardy—of the anti-democratic tone of principle that has so long characterized it, affords a subject of sincere congratulation. The new cycle, then, that has just dawned, presents a fit occasion for a retrospect of the past measures, which we will intersperse with a few characteristic sketches of the men and manners, of that dignified banc. By establishing in the public mind, at this time, distinct ideas of the errors of the past, we shall most effectually guard against their possible recurrence for the future.

We are aware of the blind veneration which has heretofore sealed the eyes of a very large proportion of the public, whenever their looks have been directed towards that sacro-sanct tribunal, in prostrate submission to its presumed infallibility ; and, in discussing our subject with the freedom which it demands, many a reader may perhaps hold up his hands in holy horror at the impious temerity. But this abject mental subjection to authority and assumption is unworthy equally of our country and age. We despise that timid prudery in politics which has become too much in vogue. It is high time to print what has been often and earnestly spoken, and what everyone ought to know. Freedom of discussion, of all subjects within the range of human ken, from highest to lowest, is the vital principle of American liberty. The noblest and best of institutions can be preserved in their purity only by the perpetual vigilance |144| of public opinion. Their best friends are those who most frankly and freely agitate the frequent discussion of the first principles on which they are founded, and by which their conduct should be ever jealously judged ; and those who would inculcate that blind veneration and submission to which we have alluded, and thus leave free scope to the gradual developement of those abuses which seem inseparable front the practical working of all human institutions, are in truth their most dangerous enemies.

We certainly are not aware that this humble deference, which those who affect to be most shocked at the reckless boldness of democratic free inquiry claim for all those existing powers, privileges and dignities, to the evils or abuses of which that spirit might be presumed to menace possible danger, has been, or is, exhibited by themselves, in any very remarkable manner, towards those things and persons which the votaries of the democratic faith, in our conflicts of party creeds, have been wont to regard as their dearest objects of reverence. To say nothing of the licentiousness of a party press, by which language is habitually exhausted for the vilification of the best and purest of men, and the wisest and most honest of measures, have we not heard, for instance, of a President, whose wont it was, open-mouthed, at his presidential dinners, to speak of “that old fool, Franklin ?” The practice, once universal among the members of the political school of that President, of unreserved execration of two of the brightest luminaries of American democracy, Jefferson and Madison, has not yet entirely died away ; though, as against the former, but a feeble echo yet lingers on our ears ; and of the latter, many of those same gentry have by this time become not less zealous in panegyric, than they were erst in abuse.

We cannot but acknowledge a lamentable deficiency of real moral independence too extensively pervading our society—especially, we think, on our sea-board—notwithstanding the peculiar boast of our national anthem. Above all, the professional bigotry and subserviency of lawyers are the most inveterate. State, church, medicine, science, and the useful arts—all these are to a greater or less extent Americanized ; but jurisprudence remains still almost stationary at the old Blackstone moorings. The peerage of the bar yet stickles for exclusive privilege and foreign precedent ; and to read the fulsome and foolish post-obit ‘orations’ of some of these legal peers on each other, no wonder that foreigners undervalue us as the most clannish, hyperbolical, and gasconading of mankind.

We shall, then, speak freely and candidly of these grave and potent dignities. It is our opinion that the judiciary system of the United States is based on false principles. The entire omission, in its organization, of the element of responsibility to public opinion—that great conservative principle on which the health and vitality of every other department of our system depends—the neglect of the |145| essential distinction between judicial independence and judicial irresponsibility, which had its origin in a deceptive analogy between our system of national, and the English system of monarchical, sovereignty, we look upon as a fatal error. And we see not less clearly an illustration of the correctness of this view in the history of the highest tribunal of the Federal Judiciary, than in most of the minor courts of the respective States.

Our review of so large a subject must necessarily be cursory ; it shall at least be honest and true, though it may strike many readers as bold ; though we shall nought extenuate, we shall set down nought in malice ; and though we may condemn past abuses, it shall be with a single view to their future remedy. Whatever may be our ideas of the proper theory on which our American judiciary system should be modelled, we acquiesce in it as established ; and are only anxious to sustain, exalt and improve it, in common with all our other American institutions. To preserve, we would purify. We would thus vindicate and guard its constitutional and legitimate jurisdiction ; its real, lasting usefulness and dignity ; together with that respect of the bar, and confidence of the community, which we would sedulously cultivate, for what ought to be the cheap, prompt, impartial and independent administration of justice—and nothing more.

It is a curious fact, which no where distinctly appears, either in the Federalist, the lectures of Wilson, the notes of Tucker, the commentaries of Kent or Story, or, as far as we recollect, in any American history—it is nevertheless a fact, that the creation of the Federal Judiciary was partly owing to foreign influence—to British debt—and that ascendency, which launched our American Government on a sea of troubles, in the midst of such rocks of the British channel as a funding system, national bank, internal taxation, soon stranding Washington’s administration on the quicksands of civil war—“malum extremum discordia,” saith that gloomy but profound teacher, Tacitus—dreadful warning, which all the modern history of Spanish America should fearfully impress upon us ! English creditors, wanting confidence in American State courts, succeeded in procuring the establishment of Federal courts, that they might in them enforce the collection of those debts, the justice of much of which one of Jefferson’s most elaborate and masterly state papers, while Secretary of State, goes to disprove. English debt !—that king’s-evil of these United States, by which we are now again cancered and convulsed—whose contractors and advocates are, as then, and always, chiefly found among those friends of funding, banking, incorporating, speculating and taxing, among whom but few friends are to be found to the principles of Jeffersonian republicanism.

No act of Congress carries into complete effect the full constitutional grant of jurisdiction to the Federal courts. The Supreme |146| Court declares emphatically, in one of its didactic decrees, (what would be thought of a judgment of the Court of King’s-Bench that should lecture Parliament on what it must enact !) that the language of the Constitution is mandatory, as respects that court, and that Congress cannot lawfully refuse to vest in it the whole constitutional jurisdiction. Such are the language, tone and temper of the belligerent strain of judgment in the case of Martin against Hunter. But be that as it may, enough jurisdiction has been either granted or assumed, to render the Federal Courts important auxiliaries, as they are in some instances the supreme executors of the law of the land. And though a judge of the Federal Court of Louisiana (once the representative in Congress, and then governor of that State) used to tell suitors surlily, that there is no right to sue in a Federal Court whenever State courts have jurisdiction—yet that was but a rare instance of self-denial. We have, on the other hand, seen the Federal Judiciary grasping at jurisdiction with a covetous eagerness, and a wide stretch of embrace, which could never be satisfied within any limits short of universal dominion. This is the great abuse against which we would direct our efforts. The action of this branch of our political system has tended more fatally than any other towards that federal centralization of power deprecated by the State-Rights and Democratic school of politics ; while by its lavish use of the judicial Veto it has gradually erected itself into a high political and legislative power—never contemplated by its founders—stretching its potent sceptre over sovereign States and nations, the monarch of all it surveys. We repeat that we are anxious to exalt and strengthen this institution in the discharge of its legitimate functions. We consider it a wise provision for most revenue, all admiralty, much maritime and constitutional, and some other jurisdiction, besides its criminal cognizance—always preserving trial by jury, where it can be done. It is only against its inordinate extension of jurisdiction and usurpation of political power, that our censure is directed. We trust that all its sincere and considerate friends will read this review with that conviction.

None of the Chief Justices, and but few of the Associate Justices of the Supreme Court, have been mere lawyers,—that caste on whose “trades’-union” some of Burke’s bitterest invectives are bestowed,—the pekins of the French revolution, as the robe of France were nicknamed by the military ; whose science is not apt, saith Burke, except in persons most happily born, to open and liberalize the mind, exactly in the proportion it sharpens the wit and invigorates the understanding ; whose vocation it is to work with such tools as belluinas, atque ferinas, immanesque leges—so the civilians stigmatize the feudal laws—such laws as make up that most complicated and irrational of all modem jurisprudence, the land tenures of England, the delight of so many American legists, and |147| from which we have been with difficulty and but partially emancipated.

At the head of the nobles of the profession at the same time in England, France, and this country, were lately Chancellor Brougham, Baron Dupin, and Chief Justice Marshall—neither of them a mere lawyer. It has been the uniform practice of our Presidents to appoint distinguished statesmen to judicial stations ; from which cause as much perhaps as any other, (for nil est ab omni beatum,) American judicial proneness has constantly been to the exercise of political as much as mere civil jurisdiction. From the personal training of American judges, and the nature of American institutions, our courts have become so political, as to deem meum and tuum subordinate if not irksome matters ; while the delight and glory of the Supreme Court has been, fomented by ardent advocates, surrounded by brilliant auditories, to pass upon the laws and rights, the interests and liberties, of sovereign States ; to sit in judgment upon the acts of presidents and governors, charters of banks and universities, treaties, creation, existence, and intercourse of nations, rights of war, and other such ambitious topics, seldom elsewhere the province of judicature ; not only to interpret and enforce laws, but to annul them. Written constitutions may be said to lay triple tiers of law : first, fundamental and supreme, the constitutional ; secondly, the legislated ; and, lastly, the unwritten ; unavoidably begetting the necessity to some extent of political as well as civil jurisdiction ; which our complex government of State and Federal sovereignties aggravates. But the immense and unexampled prepotency of putting judicial vetoes on laws, not when about to be enacted, but after they have been long in force—this vast constructive faculty, unknown in any other age or nation, has become of late the ordinary, the favorite occupation of the Supreme Court of the United States ; and, after their example, all other courts and judges throughout the country ; so that it is the assumed function of all this magistracy to invalidate whatever act of State or sovereignty lawyers denounce to judicial repeal. A French court has lately exercised something like it, by the abrogation of a royal ordinance declaring martial law in Paris ; and we are not to be understood as arraigning the jurisdiction itself, while earnestly calling attention to the fact of its towering, tremendous, teeming, and perennial exercise. Scarce a year passes, or a court sits, without this prodigious incubation. The Supreme Court is always big with it. Every provincial tyro in his teens just learning to spoil a suit, is encouraged to flesh his maiden sword on this ultima ratio judicii, by some puisné judge sitting irresponsibly during what is technically called good behaviour ; who, after premising what reporters and editors will be sure to extol as a most learned and eloquent homily, on legislative and executive usurpation, and regretting his painful duty to correct such abuses, calls down |148| the Goddess of Reason, that lately set up idol of jacobin law, to interpose and cut the knot of naughty legislation.

No veto power, ancient or modern, has existed, so formidable as this constructive judicial authority to abolish laws, to abate them, like nuisances, festino remedio. Every day ministration, as it has become, instead of merely the ‘extreme unction’ of judgment, to be resorted to only in case of imminent danger—and without that American panacea, the oil of European sanction—standing alone, as our courts do, on this modern pyramid which they have erected for themselves, without the prop of their darling “stare decisis”—having, by this species of innovation, revolutionized the law, and amalgamated all departments of government, which Montesquieu and Blackstone proclaim it as the first principle of free institutions to keep inviolably distinct and separate—no apology can be needed, with judicious and reflecting friends of free institutions, for earnestly endeavoring to fix attention, nay more, to fasten apprehension, upon the judicial Veto. We are among the most steadfast friends of a government of law. There can be no good government without its supremacy. While law is wisely and impartially administered, other operations of government may almost stand still, without much private wrong or public suffering. Let justice be faithfully administered, without sale, denial, or delay, and the entire apparatus of Presidents, Secretaries, Generals, Post-captains, Foreign Ministers, Members of Congress, and other functionaries, with armies, navies, fortifications, appropriations, &c. &c. may almost be dispensed with and we confidently believe that a century hence will exhibit such an approximation towards this state of things, and with it a yet unknown degree of social well-being and improvement, as would astonish the present generation, were such a glimpse possible behind the curtain of the yet unborn future.

An old French gentleman, who was once, fifty years by-gone, Secretary of Legation in this country, and has since held office, with all the pliant tenacity of the Vicar of Bray, under Emperor, King by the grace, and King without grace—the Marquis de Marbois, after dedicating a book to that sovereign dolt, my lord the Dauphin, with many encomiums on the wisdom and virtues which he poetically attributes to his royal highness, in his preface to his pleasant history of Louisiana, thus describes the Supreme Court of the United States :

“Il existe à Washington une puissance qui n’a ni gardes, ni palais, ni trésors : elle n’est ni entourée de commis, ni surchargée de registres. Elle n’a pour armes que la vérité, et la sagesse. Sa magnificence consiste dans la justice, et la publicité de ses actes. Cette puissance est appelée la Cour Suprême des Etats Unis. Elle exerce le pouvoir judiciaire en ce qui concerne les intérêts généraux des Etats Unis,—entr’ eux et avec les puissances étrangères. Les |149| membres de ce tribunal ne peuvent être privés de leur office, que pour cause d’inconduite, et par jugement. Leur inamovibilité est une guarantie de vertu, et d’une instruction qui croît d’année en année. Leur jurisdiction est immediate, lorsque les ambassadeurs, ministres, et consuls, ou les états, sont partis. Dans les autres cas, ils sont juges d’appel. Ces cas sont particulièrement ceux ou des étrangers sont partis contre des Etats, ou des citoyens. Cette cour a d’autres attributions, qui dejà alarment quelques amis de la liberté. Mais qu’a-t-on a redouter d’un pouvoir dont la justice fait toute la force ; qui peut, il est vrai, réduire les autres pouvoirs a l’inaction, en déclarant qu’ils agissent contre les lois constitutionnelles ; mais qui souleverait toute la république contre lui-même, si sa déclaration n’était pas conforme a l’évidente vérité.”

We cheerfully subscribe to this glowing panegyric. May its beau ideal of fond foreign fancy be always a reality !—But the glorious truth is beginning to prevail, that the most dangerous, and the weakest of all governments, is over-government. It may be still believed in the old world, and the heresy yet lingers even in the new, that, to be strong, government must be arbitrary,—like the exploded maxim of the law, that it is the part of a good judge to enlarge jurisdiction. We abjure all such heresies. The only strong and durable government is that which is mild and representative ; understood and shared by the community, yea by the commonalty ; and of all branches, that most needing to be strengthened by moderation, engaging the sympathy of the people—the weakest of all, in which the people share only as jurors—is the judiciary. In no part of the world is there such popular reverence for it, as in the United States of America, which it would be infatuation to impair by usurpation or excess. Let the majesty of the law always be upheld by the confidence of the people, and never endangered by professional encroachment. We desire to make the Federal Government strong in every department, especially the judiciary, by rooting it in the strength of universal veneration, well assured that power by compulsion, power of prerogative, and above all constructive power, are but vanity and vexation. It is false to every patriotic emotion, not to use plain language—the language of real affection—if this vital function is distempered—

It was in 1798 that the Supreme Court for the first time sat in judgment upon the act of a sovereign State, a law of Connecticut ; when the judges, Chase, Paterson, Iredell, and Cushing, not only shrank from the exercise of a power since become so cheap, but the boldest of them, Chase, closes his opinion by saying : “I will not go farther than I feel myself bound to go ; and if I ever exercise the |150| jurisdiction, I will not decide any law to be void but in a very clear case.”^*|150|

We here see the almost imperceptible source where this overwhelming cataract, as it has since become, of jurisdiction, just oozes from the earth. It shall be our task to trace it onward, till we shall find it swelling to a flood, and sweeping all obstacles before its mighty way.

But before proceeding in this duty we may pause awhile by the way, to indulge in a few of the many reminiscences and personal sketches of the men and manners of the olden time of the court which crowd on our memory.

The first judges of the Supreme Court of the United States were Jay, Cushing, Wilson, and Blair. Soon after came Iredell and Thomas Johnson. In 1793, Paterson succeded Johnson, and in 1796, Chase was appointed in the place of Blair. Rutledge, nominated Chief Justice in the place of Jay, never took his seat. The present is the only Chief Justice of the United States who has not been on foreign service. Chief Justice Marshall, like ancient Glanville and modern Erskine, marshalled squadrons before he marshalled pleadings. Three of the first judges, Wilson, Blair, and Paterson, were framers. Another, Chase, was a signer. Massachusetts has never been without a judge of the Supreme Court ; and the two from the same corner of that State have been on the bench nearly half a century. New Hampshire, Delaware, Vermont, and Rhode Island have never had a judge. New York and Maryland have each had three, Virginia four, and for thirty years two at a time. North Carolina and Georgia have each had one. South Carolina two, but Chief Justice Rutledge never took his seat. Of the two appointed from Pennsylvania, Wilson was a native of Scotland, and Judge Baldwin is of Connecticut. Judge McLean, named of Ohio, was born in New Jersey ; from which State also was Paterson. Judges Todd and Trimble, of Kentucky, were both, we believe, originally of Virginia.

The Chief Justices were Jay, of New York, Rutledge, of South Carolina, Ellsworth, of Connecticut, Marshall, of Virginia, and Mr. Chief Justice Taney, of Maryland. Of the thirteen Attorney Generals, |151| two, Edward Randolph and Robert Smith, became Secretaries of State ; and Robert Smith also Secretary of the Navy ; three, Cæsar A. Rodney, William Pinckney, and Richard Rush, foreign ministers ; two, Richard Rush and Roger B. Taney, Secretaries of the Treasury ; one, William Bradford, died in the office ; and only one, Roger B. Taney, has been made a judge. It was Mr. Pinckney’s oft expressed opinion, that the office of Attorney General of the United States is the most laborious and responsible of all our public stations. Yet, if we mistake not, he and one other are the only two who performed the uncommon exploit of voluntary resignation. The present excellent incumbent is well known to have anxiously desired it, and to have been hitherto kept in the office, against his will, only by a high sense of duty, to the great detriment of private interests. Of the reporters, Dallas was afterwards a distinguished Secretary of the Treasury ; Mr. Cranch has been, almost for a time whereof the memory of man runneth not to the contrary, Chief Judge of the court for the District of Columbia ; and Mr. Wheaton is now the American Minister Plenipotentiary in Prussia. The marble bust of Jay in the massive hall of the Supreme Court in the crypt of the capitol, is a tolerable likeness of that honest Huguenot, remarkable for his directness and purity of character, honorably employed in many important public services, both at home and abroad, but who was said not to have had the gift of second-sight of the destinies of that stupendous Southwest, which (let all travellers by steam on the western waters recollect) it was long contemplated to surrender, with the navigation of the Mississippi and all its magnificent valley, to Spanish, which would have been to Bonapartean, possession. Instead of conquering Africa, from the point d’appui of Algiers, French armies might now be entrenched at Cincinnati and Louisville, living on tamarinds, which Chateaubriand, by poetic license, says, grow on the banks of the Méchacébé, and debating, at the cannon’s mouth, with our Kentucky Gascons, the liberty of being blown up by steam or snagged upon sawyers. Chief Justice Jay and Chief Justice Ellsworth were both diverted from the bench to foreign missions. Jay’s treaty with England, and Ellsworth’s embassy to France, made as much sensation in their days as the removal of the deposites, nullification, the suspension, or any of the volcanoes that have burst in ours. In the late treaty with France, which for a while was also the great lion in our path, there is acknowledgement by supreme law that the people were right in one at least of their objections to Jay’s treaty ; for even Washington himself, like the gallant Decatur, always stood by his country, right or wrong. Ellsworth is understood to have been largely instrumental in framing the original judiciary acts (one of which smacks a little of Connecticut) and other primeval laws of our present Government. He was a calm but powerful debater in Congress, remarkable abroad for unadulterated ‘Americanism’, and on |152| the bench a most inflexible chief. He instructed a jury that the English common law is the common law of the United States. An error almost venial when English ascendency was universal in this country, and with lawyers especially omnipotent. Even one of the present judges of the Supreme Court has betrayed a strong hankering after that flesh-pot of Egypt, and been mainly instrumental in fixing the odor of its sanctity by legal fiction on the good Creoles of Louisiana, who regard the English common law with more aversion than that learned judge can the blue laws of New England.

In those ‘good old times’ when the Supreme Court sat under the régime of the English Common Law, instead of mean black sophomore gowns, (last and sorry remnant—the mere administration de bonis non—of the judicial robe !) the judges were dressed in stately scarlet and ermine. Revolutionary madness had indeed, even then, inflicted on those learned heads a deplorable privation, and on the commonwealth the fearful innovation—

of stripping them of the judicial wig, that best and most authentic absurdity of form, to quote Burke once more ! Till then, venerable magistrates were not entirely bareheaded, like an excellent judge, Brockholst Livingston, whose finely shaped head was almost entirely bald. Powder, however, when flour and tallow were cheap, was still in vogue. The bar, although unfrocked, appeared always in banc, in full suit of black, with variegated queues, tight small clothes, buckles and ruffles. The ‘lean and slippered pantaloon’ was not then in esse, as Shakespeare imagined it in posse. If we are not mistaken, Mr. Taney is the first Chief Justice of these United States, who ever so far departed from precedent, (most portentously, we submit,) as to give judgment in trowsers ! The spirit of modern sans-culotte-ism had not then overthrown all the good old landmarks and dignified fashions ; a round hat was altogether extra-judicial ; and a judge in a hat, not only round but white, would have been guilty of an offence more effectually punishable, than any misdemeanour in office is by impeachment ; and lawyers in whiskers, or boots and black stocks, would have been committed till well purged of such outrageous contempts of court. Judges were not then drawn, like money from the Treasury, by specific appropriation to particular circuits ; but, by a system of exchanges at par, each judge in turn perambulated the whole United States. Judge Cushing always travelled in an open phaeton and pair, and was of course many weeks industriously driving, without per diem, from Boston to Savannah. Judge Wilson rode the circuits in his dashing coach and four, with out-riders. At a later period, Judge Todd, the first trans-Alleghanian member of the Supreme Court, performed three thousand miles of his duty, per annum, on horseback. We may add, (in parenthesis,) |153| that then, before innovation by steam, on boat and car, had annihilated the American magnificence of distance, and lent congressional magnificence to distant per-diems, we have seen in this metropolis, a young lady, daughter of a Senator, who rode on horseback, (and without per diem,) all the way from Chilicothe to Washington ; nay more, a matron, wife of another Senator, who not only rode on horseback, but often camped out in the Indian country, during the journey from New Orleans, and nothing the worse for the wear and tear. Such historical reminiscences may be thrown in to admonish modern degeneracy of its decline from, not only the days ‘that tried men’s souls,’ but even from those of later date, when ladies were often exercised far more severely than their lords could now endure, by that talent which the Fairy Queen mentions as marking the difference between base and noble blood,—

Judge Paterson, a small man, of rather insignificant appearance, and unassuming address, was remarkable for the dignity of his deportment on the bench. In a tavern, among lawyers, suitors, witnesses, et id genus omne, he was but one of the rest—but no sooner was the Court opened, and all cleared for action, than they who but a little while before supposed him one of themselves, found, sometimes to their cost, that he was not the man they had taken him for, but every inch a judge. He was the first judge to broach eloquent and excellent anathemas on retroactive and unjust legislation ; in which, however, he has not been seconded by his brother judges ; for his elaborate argument in the first judicial condemnation of a law as unconstitutional, pronounced in the year 1795, far from receiving sanction by the Supreme Court, has been suffered to ‘waste its sweetness on the desert air’ of the Wyoming settlement, like much of the admiralty and maritime law since uttered in Eyre on the first circuit, and some of the western districts, budding and blooming with great beauty, through the cultivated parterre of many pages, but dying without fruit. Judge Chase, we believe, was never till the day of his death, seen in Court without a three cornered hat and a profusion of ruffles. He was in the habit of telling the New England bar, that their appeals from one jury to another, for the trial of facts, made every case a rubber ; so that the winning party must gain two out of three games, or he lost the stake.

Judge Washington, in 1798, succeeded Judge Wilson, with whom he had studied law. He was of rather small stature, negligent of dress, deprived of the sight of one eye by severe study, and addicted to the |154| immoderate use of tobacco, in all its trinoda necessitas. Like his peerless uncle, he had the uncommon faculty of holding his judgment perfectly in abeyance, till he heard all that could be said pro and con, and then forming it with inflexible firmness. No man ever feared responsibility less, in what he thought right, than this upright Judge—none could be more imperturbable, impenetrable, silent, patient and abstracted, during an argument, until it was his cue to speak ; it was impossible to foretell what his opinion would be ; but when he charged a jury, no judge could be more explicit or authoritative. He was inimitable in condensing and clarifying a subject, so as to drive his judgment home in the convictions of others. Perfect impartiality, great decision, magnanimous candour, and capacity for labor, strongly characterized him. He was known to sit sixteen successive hours without leaving the bench ; and on the trial of General Bright, for defending Mrs. Sergeant’s house with a military guard, by order of the Governor of Pennsylvania, against the Marshal of the United States, in the Olmstead case, Judge Washington evinced as much unaffected courage and self-possession, as General Washington did in his best fought battles. Judge Washington’s worthy associate, on that circuit, for more than thirty years, was Judge Peters ; a man of infinite humor, great mother wit, and one of the fathers of admiralty law in America. Judge Washington was a strict disciplinarian, adhering with rigid precision to rules and doctrines. His associate on the contrary, (although Secretary of War in the Revolution,) was habitually inclined to lenity, and even laxity ; so that he would say, “my brother is the strict Judge—I am only the district Judge.” It was a curious circumstance, that while Judges Washington and Peters were trying a suit, in which the King of Spain was plaintiff, and his minister, Don Onis, obliged to waive diplomatic etiquette, and give testimony on the question, whether Ferdinand the Seventh, or Joseph Bonaparte was King, the judges were in the habit of sometimes meeting the latter, then lately arrived in this country, at entertainments to which they were invited.

This personality may enliven and even explain the dry record by some glimpses of its framers ; and we will not resume the main argument without a few more portraits episodical of the most conspicuous actors on this high forensic theatre.

Early in the elder Adams’ administration, John Marshall was elected to Congress ; and, after a brief but distinguished service there, translated to a special embassy, and the Department of State ; from which, when Jefferson was elected, but not yet inaugurated, he was promoted to the high—there is no higher—office of Chief Justice of the Supreme Court of the United States, which he filled with uninterrupted sway for thirty-four years. During that period Kenyon, Ellenborough, Tenterden and Denman, four Chief Justices followed each other in the English King’s-Bench ; four successive |155| Chancellors, Eldon, Erskine, Lyndhurst and Brougham, occupied the woolsack ; and hosts of other Judges rose and fell throughout the wide realms of English and American jurisprudence. In this long tract of time, one third of a century, while numerous Judges were passing over the law’s disk, one superior luminary, not culminating till meridian age had matured his powers, was perpetually radiating the light of his powerful mind and peculiar temper upon the virgin soil of the uncultivated law of a new country. When Erskine, the greatest advocate that ever lived, took leave of the bar, on his appointment as Chancellor, he boasted that in seven-and-twenty years, he had never been kept from court by indisposition. Marshall never boasted ; but it is a memorable fact, that for thirty-three years, he was scarcely ever absent from the bench, from any cause whatever ; but almost always at his post, with wonderful capacity of body and mind ; which happy conformation is itself no small talent. Boyish buoyancy of spirits, simple and almost rustic bonhommie of manner, a tall muscular and robust frame, playful, convivial and kind, delighting in a hearty laugh, as much as in a deep constitutional discussion, never perplexed by difficulties of judgment, which terrified bookworms exhausted learning to unravel, Marshall studied during a long walk at the dawn of some bitter cold day. When more than seventy-five years old, he still relished with undiminished zest the pleasures of the table or the club ; and his right hand to the last never forgot its cunning at quoits and billiards. The physique of such a man was a a guaranty of the felicity of his morale. Captain Jack Marshall walking ten long miles to drill a company of militia, and after a fatiguing drill, ten miles home again, with a buck’s-tail in his hat, and the old Chief ringing the hob at quoits, and being rewarded for it by exaltation to the shoulders of some stout companions, with boisterous meriment, in which he was as free and loud as any one, are characteristics, which elaborate eulogists of a great Chief Justice seem afraid to allude to ; but which we delight to bring forward, with other native realities—the constitutional basis of natural and solid worth—more truly indicative of the man than more celebrated performances. With a body of Mohawk make and vigor, spirit of perpetual elasticity and masculine understanding, he united that genius for logical argument and illustration, which in the Assembly and Conventions of Virginia, in Congress, and as Chief Justice of the United States, always placed him in the front rank of advocates, statesmen and magistrates, and left his impression on the age in which he lived. Perhaps he was even greater at the bar and in Congress, than on the bench. His speech in the case of Nash and Robbins is a monument.

Ten years after the advent of Chief Justice Marshall, the deaths of Judges Cushing and Chase called on the President, Madison, to supply their places. Judge Duvall, then First Comptroller of the |156| Treasury, throughout long life an honest man and faithful magistrate—who crowned his work by the rare merit of resignation—was appointed to succeed Chase. But it proved a difficult matter to find a successor to Cushing. He must be from New England, and he should be of the right politics. The appointment was first bestowed on Mr. Quincy Adams, who had been residing sometime as Minister at St. Petersburgh, when the vacancy occurred in the Supreme Court. Mr. Adams’ particular friends having solicited the President to transfer him to some other mission, as the expenses of that of Russia were said to require the relief of another outfit, Mr. Madison, thinking that Mr. Adams would prefer a place on the bench, nominated him to the place of Cushing ; and, we believe, his nomination as such was ratified in Senate. But when made known to him, having the Presidency in view, he declined it ; and it was necessary to cast about for another incumbent. After no little difficulty and hesitation, the choice at last fell on a very young man, Joseph Story, of Salem, who had been, for part of one session, in Congress, and was speaker of that host in itself, the innumerable and then democratic House of Representatives of Massachusetts, (whose modern successors lately outvoted Governor Everett’s veto on the great and trying point of fifty cents additional per diem ;) for Mr. Speaker Story would never have been Mr. Justice Story but for his well ascertained, as was then thought, root-and-branch democracy. Judge Story accordingly took his seat not long before the war of 1812, in the court of which, from the start, he has been a leading member. Learned, indefatigable and enthusiastic, no man living has contributed more to the literature of the law, and no member of the Supreme Court has, for twenty-five years, left his impression more distinctly on the proceedings of that court,—not to mention his numerous elaborate adjudications on a prolific circuit, many of which stand unappealed from. His works have wrought the miracle of converting English and European contempt, into admiration of American law-learning. The practice of courts, admiralty, revenue, prize and common law, equity, the lesser law of nations, as well as international law, constitutional law, in short, almost all the departments of jurisprudence have been cultivated by Judge Story with most praiseworthy labor and flattering success. As professor and lecturer at Cambridge, as the deliverer of occasional public addresses, even as the author of a volume of poetry, and of extensive commentaries on the Constitution, his industry and learning are conspicuous.

Soon after his accession came war, bellum, as Lucan truly has it, multis utile. Franklin, whose treaty of Versailles is a nobler conquest, than even the victory of Saratoga which led to it, endeavoured to liberalize war and mitigate its ruffian code by some Christian mellowing. Monroe afterwards attempted the same melioration, and Madison had it much at heart ; and although they did not succeed, |157| yet, surely, this is the country whose greatest interest it is, and whose truest glory it would be, to soften the rigors and abridge the atrocities of that infernal suspension of all justice, mercy and reason—martial law. The Supreme Court were of a different opinion. Not a cunning device or harsh test of British prize law, but, by its eager adjudications, were ground into the law of this country. Pinckney, freshly descended, as it were, from the high lineage of London—the greatest if not the only American master of that law, as adulterated by Scott’s captivating sophistry—in all the sensation of his much favored descent from abroad, upon the Supreme Court—novus hospes, as he would say—with astonishing power of rhetoric, beauty of diction, and compass of learning, wit, sarcasm and overbearing fascination—taught the judges prize law, and found willing pupils in most of them. It was one of his side-bar, saucy speeches, that the Chief Justice had a marvellous incapacity for admiralty law. For Marshall’s kindly nature revolted at the barbarous axioms of a bloody code, which he had never studied, and could not be reconciled to. In vain did he, and one other judge well versed in it, protest against its American naturalization. The other judge was that humane and accomplished gentleman, Brockholst Livingston, the best informed marine lawyer of the court, and for that reason most averse to it. In spite of all, however, English prize law became our law, prescribed by a superior, as Blackstone defines law, and it is, and we presume must now ever be our law. The colonial rule of ’56, against which this country almost took up arms, the reverse of that excellent law of nations, that free ships make free goods—the most inhuman and anti-American of the English doctrines of domicile, migration, commercial and national intercourse, in contradiction to which all our institutions are founded, and the very war itself was declared—the hardest English regulations of search, seizure, capture, and almost torture, by standing interrogatories, violative of the cardinal principles of our system of evidence—nay, we incline to think that even the enormities of paper blockade, all—we believe we tell truth when writing all—the monstrous inflictions of that odious perversion of justice, which immolates the blessed rights of pre-existing peace on the diabolical shrine of supervening war, yes, all are now the adjudged law of our America ; all let loose—

—not forgetting the fiery tail of costs and charges, admiralty droits, commissions, fees and extortionate taxation—

All this is the law of a land of peace, freedom and economy, by recorded and irretrievable judgments of the Supreme Court of the |158| United States, couched in grandiloquent language, of which the taste is as false as the law and the logic. The most felonious of grand larcenies is that vulture freebooting, which is, by a worse piracy than that of Algiers, is licensed to pounce on unsuspecting wayfarers by sea, rifle their papers and baggage, pinion and imprison their persons, and send them bound hand and foot to the cruel mercy of hostile-courts, whose vulpine craving for condemnations is fomented by land pirates more ravenous for prey than even the spoilers who vex the caverns of the great deep in quest of it. It is much to be regretted, that so great a passion for prizes, the charming novelty of prize law, and the step-mother influence of the nation against whom we were at war, fascinated and seduced a court composed of statesmen, and contaminated our mild code with the feudal ferocities of sea-chivalry. I feel strong, said Montesquieu, when the Romans are with me ; as Chancellor Kent hugs the idea that American judges ought to feel strong when they have English authorities on their side. But English prize law is not the law of nations, much less fit for America. Its chains were fabricated by a country toto orbe divisos, whose insular policy, as settled by the dictator Chatham, with a preponderant war-marine, and sea-girt security, was (for even Great Britain is sick of it) to carry on hostilities with one arm, while trading with the other. Whereas, this country with no such position or policy, and the destiny of neutrality and peace, was infatuated when it forged such rules, to be visited upon ourselves by every petty sovereignty involved in war. Ask any one of our diplomatic agents in any part of South America, and he will say that the greatest difficulty our commerce has to contend with in that hemisphere is—the law of this country, as perpetually brought to bear upon it by the agents of all other nations. We are, then, reduced back to our colonial condition, by the law of our own courts, in matters of prize, revenue and foreign intercourse generally. The governments estop us with our own decrees. The very ships of other nations open this broadside upon us in every misunderstanding. And it is the deplorable, too often desperate duty of our own officers, civil and military, to contend in vain against our own most short-sighted adoption of the worst, least legitimate, and often superannuated European, especially English, dogmas of pseudo jurisprudence.

This, however, is not the worst of our disgraceful dilemma. The tendency of all Christendom is to liberal and benignant foreign relations. Continental Europe is, and was then, all alive to the rallying cry of maritime melioration and the liberty of the seas. We were the first nation to display that standard, and are the elder of all nations that bear it, at the head of a hemisphere where kings and wars cannot be perpetuated. It was a glorious occasion, therefore, for the Supreme Court to establish an American law of nations.|159| It had a moral force at command stronger, cheaper, and more irresistible than armies and navies, with banners and broadsides. It might have formed a character for itself, the perfection of that ascribed to it by Marbois, and a power for the country which the combined navies of the world could neither give nor take away. But, instead of this, it fell behind in the miry ruts of the car of conquest ; and, as we shall presently show, the effect of this irreparable retrograde is felt not alone in maritime law, but extended its baneful influence to the higher regions of constitutional law. The blast of war, which stiffened the sinews of the court for conflict with foreign enemies, seems to have inflamed their lust of dominion for subjugating the States of our own confederacy. Its worst consequence was not confined to the high seas, but felt at home ; and the regret we express for the first result is far less than every true American should feel for the latter.

The first cycle of American nationality was rounded off before the Supreme Court pronounced any formidable judgment on constitutional law, save that which, by the large majority of, however, a divided bench, asserted the suability of States. Maryland was first brought to the bar. Soon afterwards the Marshal of Georgia, Robert Forsyth, father of the present Secretary of State, (who lost his life in serving process,) having cited that State by a writ served on the Governor and Attorney General, she sent her protest and submitted it, but without an appearance against the jurisdiction. That transcendant contrivance as Wilson styled a State, was overcome, however, by the argument, that the people of the United States form a nation, on which radical question this great cause turned,—these are Judge Wilson’s words, italics and capitals. This judgment was given in 1793 ; but in 1796 an amendment to the Constitution put an end to its alarming consequences. With this single exception, the Federal Judiciary at first was forbearing of jurisdiction, and over persons particularly so. The terms citizen and alien were so literally construed as to exclude cognizance which was perhaps fairly granted by act of Congress. In respect to the citizenship of corporators, and of the inhabitants of Districts also, as well as in some other respects, the early adjudications were so abstemious and punctilious, as to cause subsequent judges to regret the timid prudery of their predecessors. The attempt upon the law of Connecticut, which ended as before stated in 1798, is the only other solemn and heralded war upon the States, during the first seventeen years of the present government ; for the single-handed incursion of Judge Paterson, on his circuit in 1795, gallant and eloquent as was that demonstration, was never supported by the main body. The Supreme Court far from sustaining that praiseworthy and constitutional attack on retroactive and unjust legislation, left it to its solitary fate, and have gravely resolved that laws may be retrospective, |160| unjust and despotic, ad libitum—ad deliquium—ad nauseam ; yet are they valid, unless ex post facto, (meaning criminal law only,) or unless impairing inexplicable obligation of incomprehensible contract. Paterson’s law is left all alone in its glory, doomed to die, like Gertrude of Wyoming, deserted in a lone valley, reduced to mere blank verse, more evanescent than Campbell’s poetry, of which a line runs thus appropriately :

Honest John Taylor of Caroline, and all the Macon school, (whose much ridiculed frugality of centralism is becoming every day much more acceptable than judicial ultraism, that school deny the constitutional right of the Federal Judiciary to review at all a State law or judgment ; and, surely, Federal judgments reversing laws ought to be at least consistent with the first principles of unquestionable justice. Jay, Wilson, Blair, Thos. Johnson, Iredell, Ellsworth, Paterson, all that primitive category passed away ; the Georgia case was reversed by constitutional amendment ; the Connecticut case was innocent of the crime of striking down a sovereign State ; and the Pennsylvania circuit case ended, as we have seen, in smoke among the coal mines of the Wyoming valley. The administration of Washington and John Adams had closed, and that of Jefferson was in full tide of successful experiment, before the States had occasion to be alarmed for their sovereignty, or the people for the constitutional distribution of the powers of government. This long period (seventeen years) of abstinence from the exercise of the formidable powers of jurisdiction since assumed, is no small proof of what the law was supposed to be by its first interpreters, the men who lived nearest to its constitutional source, and may be presumed to have best understood the character and direction which its authors had designed to give it. Abuse of the judicial veto began in after times, with the ascendency of the late eminent Chief Justice, to whose honored memory we are far from designing any disrespect, when we canvass freely the consequences of that decided federal tone of political principles with which, unfortunately, his great mind was too deeply imbued.

In 1806 the Supreme Court, grown wiser in its generation than its predecessors, for the first time broke a law, in the well known Yazoo affair. Pressed as we are for space, intending on a future occasion to analyse the power of courts of justice to repeal whatever laws they may deem contracts, we shall not at present essay much more than an historical outline, as preliminary to the more particular examination of the class of cases following in the footsteps of that giant judgment. Let it suffice now to say that it was given by but three of the six judges—William Johnson not concurring, and predicting the disastrous consequences that have ensued—Cushing and Chase both absent. After that adjudication, the temple of Janus was closed ; and |161| reposing on the laurels of the conquest of Georgia,—whose hard lot it has been to be so often overrun—the Supreme Court fell back, and contented itself with the exercise of its former accustomed functions of adjudicating questions of simple meum and tuum, for six years of truce. The law abrogated was so like an individual contract for specific grant of real estate, that we believe the country acquiesced in that first of the series of similar judgments ; nor are we to be understood as gainsaying any case exactly like it. The power and duty of the Supreme Court to interdict State laws, impairing the obligation of contracts, or of a clear ex post facto character, as the Constitution of the United States gives such power, and enjoins the duty, are the doctrine of Mr. Madison, and all his school. We do not design here to deny the power, but deal only with what we denounce as its abuse. But readers disposed to read its denial, with great ability and excellent temper, are referred to the Views of honest John Taylor of Caroline—an original, and most able, argument, which denies altogether the right of Congress to give the Federal judiciary revision of either State laws or State adjudications. We will not here question the power ; but cannot concede it, at all, without protesting against the doctrine that the judiciary is the sole and exclusive judge of constitutional difficulties. Since the first exercise of this power, however, the Court themselves have confessed the obvious impropriety of fulminating these anathemas, without, at any rate, the concurring opinions of a larger number of the judicial hierarchy. That, and the next similar case, Fairfax’s, were neither of them judgments of even a majority of the court.

In 1812, a law of New Jersey, taxing land which before the revolution was granted to Indians free of taxation, was unceremoniously repealed by the Supreme Court, without argument at the bar, or reason by the court, further than summarily to rule that this case falls under the principle settled in that of Georgia six years before.

The judgment in the case of Fairfax was pronounced in 1813, in the absence of Chief Justice Marshall and Judge Washington, by Judge Story,—William Johnson dissenting,—rashly, therefore, (whether right or wrong) reversing a decree of the highest court of Virginia, without the presence of the two judges from that State. It resulted, as was to be expected, in an angry controversy between the Court and the State of Virginia ; which brought the case again before the Supreme Court of the United States in 1816, when Judge Story once more, as the organ of the Court, then all present, but Johnson strenuously dissenting—in a peremptory and profuse argument of forty pages—commanded execution.

In 1815, Virginia State laws, repealing colonial laws concerning church glebes, were declared void by a judgment pronounced by Judge Story, as the opinion, he says, of a majority of the court ; who that majority was, does not appear ; but as Johnson and Todd |162| were absent, it is certain that it must have been a bare majority ; at which can there be any wonder, when we find this growing power already applied to annihilate a State law reforming a colonial law concerning church property ! During the same session, in another opinion of the court delivered by Mr. Justice Story, also concerning church lands, disputed by the town of Paulett in Vermont, a State grant of such lands was declared to be irrepealable.

Thus stood the supreme law as made by judgments breaking laws of Georgia, Virginia, New Jersey, and Vermont, and so far it might perhaps be yet tolerated, if the evil had proceeded no further.

But now commences that series of high-handed judicial usurpations, which have ultimately rectified themselves by the very impracticable confusion into which the whole law of the land was thrown by them—leading to results even more to be deplored than in the case of the American naturalization of English prize law, which has been already noticed and condemned.

Next in order, then, comes the famous Dartmouth College case. If we have called the Georgia case a giant judgment, this may be styled a very Cyclops of jurisprudence—monstrum horrendum, informe, ingens, cui lumen ademtum.

Again we acknowledge that the community once more submitted, though it did not acquiesce, while too many of the profession were delighted with a triumph which gave them the mastery of all the States, and repealed the Revolution. It is the usual bigotry of lawyers, Mr. Hallam ventures to assert in his Constitutional History, to defend every pretension or abuse to which their received standard of authority gives a sanction ; and it is part of our Declaration of Independence, that all experience hath shown that mankind are more disposed to suffer while evils are yet sufferable, than to right themselves by abolishing the forms to which they are accustomed.

A large part of the community never have, and never will, yield to the authority of that disastrous judgment, which has done so much to embolden mercenary men to unhinge the Constitution whenever a corporate privilege conflicts with sovereign legislation, or post-revolution right attempts to rectify ante-revolution wrong. Argument against it, on its principles, is now rendered unnecessary by the practical demonstration of its immediate results. The kindred cases in the same volume of Wheaton’s Reports, comprising the whole conspiracy of such radical reversals of the Constitution and the Revolution, soon worked out in confusion their own refutation. We need not, therefore, now analyse the English authorities paraded as precedents for the Dartmouth College decision ; but ask of the reader to collate that case with those in which laws of New York and Louisiana, respectively, were vacated by judgments of the same court at the same sessions ; and then to reconcile the whole, if he can, with the consummation of the doctrine in 1827 in Ogden’s case, |163| that crowning result of judicial darkness visible—that total eclipse of the light of law. We defy ancient or modern learning to produce one hundred and fifty pages of more recondite and irreconcilable contradiction, obscuris vera involvens, than the judgment in that case. There is not a judge in America who knows how to rule by it ; not a lawyer who can advise clients to suit it. What is a contract ? Who knows ?—What is an obligation ? Who can tell ?—What laws are ex post facto ? How shall we learn ?—What is right, and what remedy ? Can any one say ?—Let those who doubt turn to the case of Zacharie in the sixth volume of Mr. Peters’ Reports, and there read Chief Justice Marshall’s confession that the minority of the judges, who concurred in the opinion of Mr. Justice Johnson in Ogden’s case, settled the law of the court no longer open for controversy ! After five years of interregnum, without any law at all, the Chief Justice was constrained to explain that the minority of the court, headed by Judge Johnson, who, from 1806 to the last, protested against making contracts of laws, and foretold the consequences—that the minority, thus headed, gives the law of the land ! Is this the law—the supreme law—by which State judges, statesmen, States, and the people are to be convinced and satisfied as well as governed ? Certainly not. The Supreme Court themselves virtually and actually reverse their own judgments ; and it is the duty, as it is fortunately the easy office, of the present court, who are perfectly free, to make and act upon their own interpretation of the Constitution. They have no other alternative. The old court, but not the first, put the judiciary on a construction that would not work, would not go at all. The machine was then tinkered to no purpose. It was obviously out of joint, on the high-pressure principle : and the constructors were obliged to acknowledge it.

This is our present argument against the Dartmouth College case and all its legal affiliations. Impracticable construction was put by them on the Constitution, making every law a contract, before the Revolution or since, public or private, as any judge might choose. It is futile and arbitrary to attempt to save limitation laws, marriages, divorces, salaries, or any other contracts, from this all grasping construction, which leaves all enactment to the discretion of every judge. The same judges who arrogate this despotic discretion, show by their own predicament, in the practical working of their wisdom, that discretion is a most uncertain standard for constructive authority. The United States are now without law as to one of the most important conservative interdicts of their great charter : reduced to this condition by no popular misrule, no executive or legislative misconduct, but by their higher judiciary, in the construction of a plain phrase conferring indispensable power. As the law now stands, State legislation may perpetrate any outrage that party phrenzy or personal corruption shall incite, provided it does not impair |164| the obligation of a contract, while what either contract or obligation means, learned judges, one and all, are unable to inform the people. They have left us in this respect no government—not even their own. Nothing could be worse than their rule, except their own exceptions to it. Applying technical meaning to national compact, with both over-precision and over-latitude—turning politics into law, and all laws into private contracts—such nisi prius manipulation of a constitution inevitably brought on confusion. One of the greatest of the late Chief Justice’s undoubtedly great merits was, that he was not overlearned in the law : nor was it till a young and emulous judge came from the East, laden with law authorities, fresh from Great Britain, that construction ran riot with

Did not Mansfield once say that he would not take the law from Keble or Siderfin ? By authorities, for aught we know, it may be shown that the Dartmouth College Cyclops is not deprived of its only eye by subsequent adjudication. But to plain folks, who regard things more than words, and principles more than precedents, that half-blind monster has been put hors de combat by the very champions who brought him forward. The superfœtation which, it appears by Wheaton’s Reports, was held up in grœmio legis [sic] during a most unnatural gestation, and at last delivered in 1827 by the Cæsarean operation, piecemeal, not only seriatim, but summa ope, with the assistance of a multitude of counsellors, Messieurs Wheaton, Webster, Wirt, Livingston, Clay, Jones, Sampson, and Haines, settled the long agony. Ogden’s case marks an epoch in our constitutional and judicial history. Painfully convinced that their constructive bow had been shot with vigor beyond the law, the Supreme Court, de guerre lasse, made a halt ; and soon afterwards began retreat and atonement.

During the first seventeen years there was but one judicial demolition of State sovereignty. During the second age they were so numerous that every session was signalized by them. During a third epoch a counter current set in—until at last, as we trust, there is an end of all such experiments. For our authority as to the contrariety of sentiment, and the colonial adoption of English authority so deplorably misapplied to American constitutional doctrine, we vouch Judge Baldwin’s late publication, which goes far beyond our power of proof and strength of assertion. This review is less professional, and perhaps more poetical, than his protest : but that abounds with the poetry of strong feeling roused to strenuous exertion by dangerous encroachment ; and its research into American authorities may well vie with the hosts of such as are brought upon us from abroad.

Next session, 1828, Judge Washington, who sided with the conquering |163| minority, led by Judge Johnson, against the Chief Justice’s division, gave the Court’s opinion in Satterlee’s case, devastating all Paterson’s law in the valley of Wyoming ; and determining, not only that retroactive legislation is constitutional, but that it may divest vested rights, and even adjudicate individual controversies with impunity. The reader will find in the second volume of Mr. Peters’ Reports, page 412, the new principles that overthrow their forerunners, detrimental atonement for foregone error. Let all candid men say whether the Supreme Court’s supreme law, is what the forecast of the Constitution anticipated, either as to the thus unbridled license of States to perpetrate retroactive laws, and the impotence of the judiciary to prevent such injustice, on the one hand ; or the palsy of States to enact any laws, no matter what, which, by equally unbridled license of courts, they may arbitrarily resolve into something impairing contracts, on the other hand. State laws are contracts whenever the Federal judiciary say so ; yet State laws, however retrospective, ex post facto, unjust, odious, judicial, individual, and abominable, are beyond constitutional control, because no retroactive State laws are prohibited but only such as merely punish ; States are chartered libertines for mischievous laws, and courts for mischievous construction ; but both States and courts are impotent for any good. To this condition we were never reduced by the Federal Constitution, but by judicial legislation and ambitious construction. Politics are not like law, reducible to consistent certainty ; and the great error of the judiciary has been, in trying to adjudicate what is insusceptible of adjudication. The consequence is confusion. Either of the other departments of Government, or even a popular assembly, is a better forum for political law, than courts of justice. Contracts and ex post facto laws, as contemplated by the Constitution, are obvious enough. But by giving technical meaning to the term contract, no meaning to the term obligation, and false meaning to the term ex post facto, the Supreme Court got into a predicament from which extrication became indispensable.

It began, in 1830, in Lampshire’s case, when Judge Baldwin, Judge Washington’s successor, who knows the meaning of State rights, and knowing dares maintain them, delivered an opinion of the Court, upholding a law of New York, which at any time in the strong reign from 1812 to 1820, would have been cut down remorselessly by simple fiat et ruat. In 1833, Nicholson’s case was determined, unanimously sanctioning a State law confessedly judicial and individual. Finally, in 1834, Judge Story himself affirmed in Mercer’s case, all the confessions of contrition. And at last, in 1835, the Chief Justice gave out the glad tidings, that, the Court not being full, no constitutional cases would be taken up.

Nearly every State of the Union, in turn, had been brought up for sentence, Georgia, New Jersey, Virginia, New Hampshire, Vermont, |166| Louisiana, Missouri, Kentucky, Ohio, Pennsylvania, Maryland, New York, Massachusetts, South Carolina, (Delaware just escaped over Black-bird creek,) and perhaps others not within our memory, all passed under the Caudine forks of a subjugation which has more than revived the suability of States ; concentrating in its prepotency all the distributed energies of legislative, executive, and judicial government. Beginning with Madison’s case, there are near forty of these political fulminations from 1803 to 1834, viz : one in 1806, 1812, and 1813, each session, two in 1815, one in 1816, four in 1819, three in ’20, two in ’21, two in ’23, two in ’24, one in ’25, four in ’27, five in ’29, three in ’30, two in ’32, two in ’33, and one in ’34 ; a great fabric of judicial architecture stupendous as the pyramids of Egypt, and as inexplicable. The cry of Executive usurpation is shouted to rouse resistance almost to violence against the merely suspensive Veto of one ‘tyrant,’ strictly accountable every four years to a sovereign people, while the absolute veto of seven, no one of whom is, or can be, brought to the judgment of the ballot-box, is fortified with more than Tribunitian sanctity and might.

No such formidable power is known to any representative government as the American republican irresponsible judicial veto ; a power to dismiss laws, as the President may dismiss officers, without question. The taxing power, the currency, and impost, the process power, municipal police, the militia power, commerce and intercourse at home as well as abroad, the purse and the sword, : church and state, all power in fine, is to be concentrated in the judicial focus. Having noticed some, it is hardly necessary to swell this review, with even short references to the whole catalogue of judicial vetoes. Besides those mentioned, there might be added the two in 1817 and in 1824, when the States of Maryland and Ohio, were reduced to mere corporations, subordinate to the corporation of the Bank of the United States ; a third in 1829, when the city of Charleston was forbid by the Supreme Court to tax by ordinance the loans of the United States ; and a fourth, when the city of Baltimore was, in like manner, prohibited from taxing imported merchandise. To the cases on insolvent laws, might be added those of Pennsylvania, abrogated in 1821, and Rhode Island ; to those on police regulation, the law of Virginia against those nuisances, foreign lotteries, unhesitatingly vacated, the present Judge Barbour, then at the bar, protesting for the State, but in vain.

In 1822, the process law of Kentucky was whistled down the wind by one of those unannealed judgments, pronounced without hearing (we will not say without taking) counsel, so doubtful, that Mr. Clay, as amicus curia, and truly such, solicited another hearing. In 1824, Fulton’s privilege for steamboat navigation on the waters of New York was destroyed, as is well known, Judge Johnson alone dissenting. In 1832, the Empire State was compelled, after protest, to |167| appear and answer the complaint of New Jersey, although there is no legislation to regulate this constitutional power. That session, Georgia was once more vexed in a most irritating quarrel with her Indian inmates, the Cherokees—Judges Johnson and Baldwin stoutly dissentient against a minatory opinion, which rather brandished than hurled the veto ; but next session the lightning went with the thunder, striking a sovereign State lifeless, at the feet of a savage tribe adjudged a nation, as several States had been before paralyzed at the footstool of a banking corporation. The two Missouri cases, of 1830 and 1834, are the last we shall notice in this formidable list ; in the first of which, after an earnest protest by a distinguished Senator, the bitter pill of judgment was gilded by saying :

“In the argument we have been admonished, by one side, of the dignity of a sovereign State, of the humiliation of her submitting herself to this tribunal ; of the dangers that may result from inflicting a wound on that dignity ; by the other, of the still superior dignity of the people of the United States, who have spoken their will in terms which we cannot misunderstand. To these admonitions, we can only answer, that this department can only listen to the mandates of law, and tread only in that path which is marked out by duty.”

Yet although three of the judges read the ‘mandate’ differently from the Chief Justice, and trod a ‘path of duty’ different from that he marked out, the judgment in the second Missouri case, is a simple fiat on the bare authority of the first, adjudged by a bare majority of the divided court. Dissension on the bench, ill-will of the States, and discontent of the people, must be the bitter fruits of such administration of the law and justice. American pride is humbled, to compare the solid brevity of English adjudications with the prolixity of inordinate political disquisitions, begetting angry misunderstanding, in our Supreme Court. The Vicar of Wakefield might call many a one of our judicial arguments a treatise on matters and things in general. In the six hundred and fifty pages of the eleventh volume of Mr. Peters’ reports, there are only about twenty cases, mainly owing to political diversities of opinion. In the Dartmouth College volume of Wheaton’s reports, there are some thirty cases, expatiating over seven hundred and fifty pages—of which no less than four hundred pages and more are consumed with political speculations, in three cases. Habits of amplifying conflicting opinions and jurisdiction grow on judges who indulge them. In all the Georgia cases, Yazoo and Cherokee, in the Missouri cases, the bank cases, the militia case, the lottery case, the steamboat case, the police cases and the insolvent cases above all, political disquisition inevitably brought on contradiction, gradually exacerbated to habits of dissension—malum extremum discordia—which like opium-eating, increased till debility, discredit and prostration ensued, when the majority became a minority, and the minority gave the law.

|168| Dissension has done its mischief in a remarkable manner. Judge Johnson disagreed from most of the over-wrought judgments. Judge Baldwin has been also a frequent dissentient. Except Chief Justice Marshall, every other judge on the bench has recorded his disagreement to some of the constitutional doctrines adjudged by the court,—in the Baltimore case, Judge Thompson ; in the Rhode Island insolvent case, Judge Washington ; in the Dartmouth College case, Judge Duvall ; in the Charleston case, Judges Johnson and Thompson ; in the militia case, Judge Story ; and in several of the latter cases, Judge McLean. In the very first case, that of the suability of a State, Iredell dissented. From first to last, politics have produced division of the court, so that not one of the judgments annulling State laws has been clear enough to carry unanimity, without which such judgments should never be made. How can we forbear adding, that even the purity of such administration is brought into question, when lawyers of one political party generally appear as the advocates of high-toned decisions pronounced by the judges of the same party ; thus tarnishing with suspicion of party and personal partiality what ought to be above all suspicion. The stimulating effect of these deplorable judgments, in emboldening the bar continually to question the constitutionality of whatever State laws it may be the interest of clients to dispute, is but too palpable. It has rendered this American peerage, like the British House of Lords, to the manifest detriment of their order—we mean the American bar—unreasonably unpopular.

When the late Chief Justice at his last session, just before his shining light was quenched forever, announced ex cathedra, that no constitutional cases would be taken up, the Court not being full, and Goliath’s sword, thus wrapped up, was put away in the temple, as we trust for a long rust,—it was a melancholy hour for that potent and dignified bench. A change came over the spirit of its dream. The Venerable Deans of the faculty, the old Chief and Judge Duvall, octogenarians, invincibly jocund and boon, might still relish existence ; but junior brothers now opened their cards of invitation, at the opening of the court, with listless indifference ; the crowded sofas were no longer garnished with feather-headed beauty, assembled to listen to eloquent political forensic arguments ; nor was the heavy colonnade of background to the tableau darkened by lawyers, with bowels yearning each in his turn to bring up States to devour. The reporter fears his forthcoming volume must be a mere drug ; its dry bones marrowless, the unsaleable sorry record of only life, liberty, reputation and property protected. After two insupportable hours of dull debate, adjournment becomes as constitutionally necessary for the Court, as a bank, in its judgment, to the Government ; and, on motion of a judge who has now read all his newspapers and written all his letters, it is ordered that court be adjourned—to prepare for dinner. But what attraction has ministerial dinner or Presidential drawing-room |169| for magistrates, undistinguished by recent political exploit ? Instead, of that conscious and elevated dignity, by which a judge fresh from the overthrow of a State, vies with a belle who that morning jilted her suitor too, and towers above the herd of Secretaries, Senators and Members, taking his soup with delightful superiority at dinner, and his ice with a glow at night, the unhappy man, dyspeptic and even taciturn, can eat only of one simple dish of each of the six courses at dinner, and after an indigestible day, weary, stale, flat and unprofitable, sinks at night into a corner of the drawing-room, unobserved, till at last, almost sneaking to his hack, he goes to bed, repining that he has done nothing for immortality.

To do them one and all no more than justice, it was but ambition, that universal throb of the American heart, and life-blood of American enterprise, vitium propius virtuti, which urged the judges to overaction ; and our only object, not detracting from their talents, learning and integrity, is, with becoming deference, to indicate the true and only highway of judicial usefulness and renown. We must, however, charge the whole panel to

We have no wish—far from it—to discredit the professors of a science, which, according to its great English commentators, employs in its theory the noblest faculties of the soul, and exerts in its practice the cardinal virtues of the heart ; nor to mortify even their judicial ambition. There are fifteen thousand of that profession in the United States ; many of them liberal, enlightened and patriotic ; the infusion of whose sentiments into both the enactment and the administration of American laws is so deep and pervading, that he cannot be an American, who does not desire to see the corps chastened by love of the Constitution, and the true principles of the institutions of our common and glorious country. Brought painfully to the conviction that the judicial department has arrogated political authority, not belonging, and extremely injurious, to it, we desire to see this usurpation laid down, only that its legitimate jurisdiction may be more firm, unquestionable and useful. In the session of 1836, when the Supreme Court of the United States had no Chief Justice de jure, (owing to senatorial demur, to which history will do justice,) the senior Associate, Mr. Justice Story, presided, as chief de facto ; and all to be desired is, that he and his brethren may condescend always to discharge their high duties with the same ability, which during that session distinguished the Court, when States and Constitutions were let alone, but ample fields of jurisdiction spread before it, enough

|170|—the admiralty, maritime, commercial, landed, chancery, common law, revenue and other cognizance, which, every session, brings persons, property, life and death, charters, States and foreign suitors without number, to their bar. We ask them, with sincere regard and respect, to ponder this. Whenever a State law unconstitutionally impairing the obligation of a contract, or clearly ex post facto, whether civilly or criminally, comes before them, if right to do so, they should not hesitate in its revocation. But we must deplore and deprecate that false vision which descries the mirage of constitutional mountains in every molehill of legislation, while it regards the most dangerous reefs and rocks of ex post facto laws with indifference and apathy. We call upon them anxiously, not to rend the married calm and unity of States, but unite dispassionately, as a replenished court, by simple and mild restoration, to open a new era for the judiciary, such as all considerate ministers of law, and patriots of every party, should wish to see perpetuated. The cases of the Kentucky bills of credit, the Massachusetts bridge, and the New York passenger vessels—held up for that constitutional vexation, that had become so common and hurtful to the Court, the Constitution, and the country—were disposed of, in 1837, by judgments which at least nine-tenths of the intelligence of the community will approve. Can the recalcitrant judges in all these cases flatter themselves that the country, or even the profession, will uphold gratuitous, querulous and detrimental divergence ? The judgment in the New York case delivered by Mr. Justice Barbour sustains the plainest, the most vital State rights—such as never should be disputed by any judge in the Union, and of which Judge Story’s denial is greatly to be regretted. Such arguments, instead of putting an end to litigation, open its very floodgates. They make the law, which it is the province of judges only to interpret. Of the Kentucky case, we can testify that, just before he expired, the father of the Constitution, Mr. Madison, among his last aspirations for that charter and the much loved nation it created, declared that its framers contemplated, as bills of credit, such as the Court has adjudged, and not such as Judge Story, and, he says, the late Chief Justice, held them to be, from the mere dry language of the Constitution.

Finally—is it not a reproach to justice that the piepoudre litigation of the Charleston bridge affair, should be for several sessions of the Supreme Court the cud chewed for a maw become rabid for such food ? That bastard of the Cyclops judgment, spurious offspring of the Dartmouth College dogmas, still-born, and the last of the race ! The very rudiments of mere municipal law bloated into a constitutional dropsy, to be tapped by learned doctors ! The ferriage of a two-penny bridge, rocked by exaggeration into the passage of another Red Sea ! Like the ten-cent revolution at Faneuil Hall—that ne plus ultra of the ridiculous sublime—this collegiate |171| tempest in a teapot might serve for the lads of the University to moot ; but, surely, was unworthy the solemn adjudication attempted for it. Most fervently do we hope that the youth of that and all other American seminaries of learning may be brought up in the nurture and admonition of that patriotism which inculcates independence—that we are a world by ourselves, disdaining the cloistered and cast-away prejudices of the old one ! Otherwise our courts of justice are

In conversation lately with Mr. Livingston, Lord Durham expressed his amazement at this Ostrogothic halt in our march, falling into the rear of the onward intelligence of Europe, and the spirit of the age, in which we have all the right of seniority. While British good sense, of all parties and professions, is pushing jurisprudence forward, in imitation of ours, there are those among our statesmen and barristers who strain every nerve to carry it back to what they preposterously worship as the ancient shrine. Instead of taking the lead, which belongs to us, they would fall behind and flounder in the mire. Preceptors we might be, but pupils we must be. This lamentable idolatry appears to be a malaria of the sea-board, where every arrival from abroad brings further trammels of colonial servitude. The distinguished advocate of Dartmouth College, a gentleman of superior powers, and Pinkney’s legitimate successor, certainly, by this unworthy surrender of American independence, sacrifices his natural right to that high forensic eminence which his talents claim.

From the auspices of the first session of the renovated Supreme Court, we anticipate better things ; the restoration of the Constitution ; without shocks or reversals, by such quiet, conciliatory and unassailable adjudications as those pronounced in the cases just mentioned. True conservatives, we maintain original and practical authorities, and condemn only such abuses as have sufficiently exposed themselves by their consequences. But may we not without umbrage submit, that reconsideration has become indispensable of that series of judicial enactments by which private contracts, tax laws, church and police regulations, charter and other State rights were engulfed in a whirlpool deeper than ever plummet sounded, from which nothing but a change of pilots could save the vessel ?

We are in the midst of a revolution. To be sure we are—when, since the Declaration of Independence have we not been so ? Executive, legislative, popular and judicial revolution ; progress is the necessary condition of American republicanism ; but bloodless as yet—and like to be—the alter et idem of our peaceable but constant |172| agitation. What American would live out of it, or could live without it ? Our whole system is a great perpetual experiment.

And with much satisfaction do we see the harmonious operation by which the Supreme Court, the President, as dedicated by his first imperishable message, Congress and the States, and the people of the States, are devoted to the great and glorious cause of reducing government and enlarging freedom as much as possible. May the experiment be constantly but fearlessly carried to the uttermost !